AFSPA has been often in the news for more wrong reasons than right. Human rights activists have accused the act to be ‘draconian’ giving sweeping powers to armed forces, powers which are often misused. The act has been known to provide unprecedented immunity to security forces that operate in AFSPA areas.

In its current form AFSPA (The Armed Forces (Special Powers) Act) was passed by Indian Parliament on 11th September 1958 for handing over more powers to the Indian armed forces in "disturbed areas" in the north east. The act was first introduced in the North East states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. After the start of insurgency in Jammu & Kashmir, the act was implemented there as The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 in July 1990.

AFSPA has been derived from the British India “Armed Forces (Special Powers) Ordinance-1942 (AFO)”. The AFO-1942 was enforced in British India soon after the Quit India Movement had started and Viceroy Lord Linlithgow promulgated the Armed Forces (Special Powers) Ordinance-1942 on 15th August 1942. The ordinance was aimed at desisting Indians from participating in the freedom movement and gave ample rights to the British official machinery to arrest, torture and use force even to the extent of killing civilians on mere suspicion. The act was seen as an iron fist of imperialism in British India.

Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law against assembly of five or more persons or possession of deadly weapons.

To arrest without a warrant and with the use of necessary force anyone who has committed certain offenses or is suspected of having done so

To enter and search any premise in order to make such arrests.

The act also gives sweeping immunity to the armed forces working under it, offering them unprecedented protection for their acts. The act states “Protection to Persona acting under Act : No persecution, suit or legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

It has effectively ensured that most of the excesses committed under the influence of AFSPA go unpunished and in most of the cases even after the crime may have been proven by investigating agencies, central government sanction for prosecution has not been granted.

An example of how AFSPA shields rights violators is the 25th March 2000 Pathribal (in South Kashmir) incident where officials of 7 Rashtriya Rifles killed 5 civilians in a fake encounter whom they had earlier labeled as five "foreign militants". Protests by civilians against the fake encounter resulted in many more civilian deaths during police firing on these protestors and subsequently the state government was forced to hand over the case to CBI. The CBI conclusively proved by DNA matching that the five killed had been innocent civilians who had been picked up from various places and killed in a fake encounter for passing them as "foreign militants". Till date the prosecution of such cases has been withheld by the Government of India, hence justice remains elusive for the victims.

In another incident on 30th April 2010, three civilians were killed in a fake encounter by the army troops in Machil sector of Kupwara in north Kashmir again labeling them as ‘foreign militants’. After protests by locals an inquiry was instituted and it was proven that the killed were innocent locals who had been lured by the army personnel to be killed in fake encounters near the LOC. Again on 21st February 2009 army troops at Bomai in north Kashmir are alleged to have dragged out two civilians from a local taxi they were travelling in, fired at and killed them without any reasons. Such incidents of abuse of power and human rights violation abound in Kashmir.

AFSPA has been opposed and criticized at various levels. The United Nations Human Rights Committee (UNHRC) in 1991 questioned India on the validity of the AFSPA. In 2009 UN again protested against AFSPA when UN Commissioner for Human Rights Navanethem Pillay asked India to repeal it. The implementation of AFSPA has come under severe criticism from human rights agencies, Amnesty International and Human Rights Watch (HRW) for several cases of human rights violations in the state.

On their part, government has often defended the act in that “AFSPA is needed ‘to counter terrorism and maintain law and order’” but in reality the law has not been itself sufficiently provided with checks and balances or any mechanism to ensure justice is delivered for human rights violations by the armed forces. In such a scenario the civil populations in AFSPA areas are often the ones at the receiving end with no hopes of justice. Even the implementation of the said act under same circumstances in different areas has not been viewed as justly uniform. In 2010 at least 120 civilians were killed in Kashmir unrest (majority of them kids and youngsters) when security forces fired on them, often blaming them for stone pelting: however the refrain shown by the same security forces in Jammu in 2008 during the Amarnath unrest was different, where angry protestors resorted to blockade of Kashmir valley and large scale violence. Even after the protests in Jammu had turned extremely violent resulting in the killing of two policemen, security forces did not resort to any firing on civilians. In Kashmir the actions of security forces is seen as a mindset of ‘us controlling them by any and all means’.

For the 21 years that AFSPA has been applicable in Kashmir there have been thousands of human rights abuses reported by Human Rights Groups (officially state reported about 133) and most of these abuses were of fake encounters, rape, killing in custody, torture, extortion. The ‘murder for medals and rewards’ has seen a repeated occurrence in the state but how many of these incidents saw prosecution and justice?

In June 2010 the SHRC (State Human Rights Commission) asked the State Government to take up the matter with the Central Government, stating that some officers and troopers with vested interests were misusing AFSPA (the Armed Forces Special Powers Act) for rewards and promotions. Chairperson of SHRC, Justice (Retd) Bashir-ud-Din remarked “In the garb of AFSPA, instances of killing civilians in fake encounters and dubbing them as militants have come to fore in the past also. This is a dangerous pattern which can have serious consequences besides intensifying alienation among the common people against the political dispensation”

Chief Minister Omar Abdullah recently announced that AFSPA would be removed from some parts of the State. According to some reports the revocation of AFSPA had already been planned in 2008 in a phased manner but the fall of PDP – Congress coalition government during the Amarnath land row came in its way. In October this year, addressing a police commemoration function in Srinagar, CM Omar Abdullah stated “with the gradual improvement in the security situation and return of peace, some laws (AFSPA) are being removed from certain areas within the next few days”. However soon after the Chief Minister had expressed his intentions for revocation of AFSPA from certain areas of J&K, army voiced its opposition to lifting of this controversial act. Even the coalition partner in state government, the state Congress chief raised voices in the AFSPA debate signaling a disconnect between the ruling coalition partners on the issue.

The other opinion:

According to some experts if the state government removed the DAA (Disturbed area act) AFSPA could automatically cease to be effective in J&K. Legal experts are of the opinion that in line with the constitutional status of J&K since central laws do not automatically apply to the state, AFSPA also did not directly apply to J&K.

In 1990 by the then Governor Jagmohan invoked provisions of DAA (Disturbed Area Act) to enable police act with special powers for combating militancy. In 1997 National Conference government led by Dr. Farooq Abdullah declared the state as ‘disturbed’ by bringing an enactment before the state legislature which replaced the old disturbed Area Act. The enactment that had been adopted by the state legislature expired after one year in 1998 and since then has not been extended, thus making the DAA legally ineffective. According to experts it is the state government which can propose and withdraw by notification any central laws having been applied on state. In fact legal experts have been questioning as to how the state can withdraw the DAA (Disturbed Areas Act) since the law ceased to exist on the statute book.

Noted lawyer and former Deputy Chief Minister, Muzafar Baig in 2009 had in fact moved a resolution in the J&K State Legislative Assembly to declare the existence of AFSPA in Jammu and Kashmir as ‘illegal and unconstitutional’ as DAA (Disturbed Areas Act) no longer was operational in the state. Ironically it was the same National Conference government led by Chief Minister Omar Abdullah, which now calls for partial revocation of AFSPA, who then strongly opposed the resolution moved by Muzaffar Baig.

Of course where there is a will there is a withdrawal; the Manipur government in 2004 withdrew the AFSPA from some parts despite opposition from the Central government.

Contrary to some claims, revoking of AFSPA does not mean Army cannot act against ‘perceived threats’, only that now it will have to act under Criminal Procedure Act (CrPc) wherein the government can utilise help or services of the army alongside a magistrate.

AFSPA no end in sight:

The chief of Indian Army’s Northern Command (Lt. Gen. B.S. Jaswal) is earlier on record to have said “I would like to say that the provisions of the Armed Forces Special Powers Act are very pious to me and I think to entire Indian Army” (NDTV on 14th June 2010). On the ground AFSPA has done equal or more damage by alienating the common people from the idea of India than any political alienation could ever have. It is this fear of human rights abuses, atrocities and the knowledge that no justice will be dispensed that has widened distances between New Delhi and common people on ground. Every jawan, ever soldier is seen as the ultimate authority in his little domain circle here, villages and far flung areas are known to have a dominance of military administration than the local civilian one with these unbridled powers. Ironically the same Indian army on peace keeping missions on UN assignments in hot spots across the world does not need any AFSPA to perform its duties; neither do the Indian security forces act with AFSPA when groups like MNS and SRS take metropolitan cities to violence hostage. So why only Kashmir and NE, maybe it is again the mindset inculcated within the security forces in these places of ‘us versus them’.

In fact utilizing the army with powers of immunity against civilians diminishes any hopes for a political solution to problems in these areas. Such actions and powers only erode the faith of common people, if any of it has been left in the first instance, pitting them more defiantly against the state and its strong arm tactics. As of now in spite of the political rhetoric on AFSPA, the act stays firmly on ground and so does the seed for alienation and human rights abuses.